Dear Richmond upon Thames Borough Council,
I would like to request responses to the following questions:
1) For how many commercial properties within the London Borough of Richmond Upon Thames have there been multiple applications for empty rates relief in the past three years with a time lapse of no less than approximately four and a half months between applications?
2) For how many industrial properties within the London Borough of Richmond Upon Thames have there been multiple applications for empty rates relief in the past three years with a time lapse of no less than approximately seven and a half months between applications?
3) What are the addresses of the properties covered by your answers to questions (1) and (2) above?
4) Who are the proprietors of the properties covered by your answers to questions (1) and (2) above?
5) For each proprietor covered by your response to question (4), what is their interest in the property (for example, freehold or leasehold)?
6) For each proprietor covered by your response to question (4), are they a Real Estate Investment Trust (REIT)?
7) If the applicants for empty rates relief for the properties covered by your answers to questions (1) and (2) above are not the proprietors of those properties, who are the applicants?
8) For each of the properties mentioned in your answers to the questions above, on what date did the London Borough of Richmond Upon Thames receive the most recent application for empty rates relief, and was such relief granted?
Alternatively, if you already operate a publication scheme for any of the information requested above, please can you let me know where and how I can access this scheme in order to obtain that information? Of course, for any information requested above that is not part of a publication scheme, I would still like to receive that information from you by way of this Freedom of Information request.
I understand that certain landowners are exploiting a loophole in the Non-Domestic Rating (Unoccupied Property) (England) Regulations 2008 to avoid paying business rates for long periods of time while keeping their properties empty.
An empty commercial or industrial property will be exempt from paying business rates for a certain period of time. After three months (for a commercial property) or six months (for an industrial property) of being empty, the landowner must start paying business rates again.
I am aware that certain landowners will enter into a lease of at least six weeks at the end of this three or six month period with the sole intention of using this lease to avoid paying business rates for a further three or six months once the lease expires.
This is done to get around regulation 5 of the Non-Domestic Rating (Unoccupied Property) (England) Regulations 2008, according to which a lease of less than six weeks would not achieve this goal.
It is worth noting that, despite the six week lease, the property is likely to remain continuously empty by any reasonable definition of the word, as High Court case-law has found that simply installing Bluetooth apparatus into a premises is enough for that property to be “occupied”.
I trust there will be no issues regarding the ‘personal data’ exemption to disclosing information. I understand that ‘personal data’ is limited to data about identifiable living individuals and does not extend to information about companies or organisations. To the extent that the vast majority of answers you can provide to my questions above will relate to companies and organisations, I expect you will be able to disclose those answers without breaching your obligations under the Data Protection Act.
However, if you take the view that some of the requested information does constitute ‘personal data’, I trust you will be able to find a way of processing it fairly and lawfully such that you are able to fulfil your duties under the Data Protection Principles. I implore you to find a way of doing so, especially given the public interest in disclosing this information, given its importance to the public discussion on issues such as tax avoidance, homelessness and property speculation. Such importance was recently recognised by Judge Fiona Henderson, who noted in the context of a freedom of information case brought against Camden London Borough Council that “the public interest lies in putting empty properties back into use” and who thereby ordered the disclosure of certain information that would facilitate this. It is suggested that the information requested herein would also facilitate this, by contributing to the public discussion on properties that remain empty and hopefully driving forward public policy proposals that would bring such properties back into use.
Yours faithfully,
L Jones

Thank you for your request for information received on 12 February 2018.

Your request is being considered and the information will be provided
within the 20 working day statutory timescale, this is subject to the
information not being exempt or containing reference to any third party.

The Freedom of Information Act 2000 defines a number of exemptions, if any
of these exemptions apply to the information you have requested then the
information may not be released. You will be informed if this is the case
along with details of your right to appeal.

The application of an exemption may mean that the information you have
requested may take longer to provide than the 20 working day limit. If
this is the case you will be notified in writing along with the additional
time required to consider your application.

If the information you have requested contains references to a third party
then they may have to be consulted before the information can be released.
If this is the case you will be notified in writing.

If you have any queries please contact us.

Regards

FOI Team

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1 Attachment

Your request for information which was received on 12 February 2018 has
been considered.

Please find our response attached.

IMPORTANT:
This email and any of its attachments are intended solely for the use of
the individual or entity to whom they are addressed. If you have received
this message in error you must not print, copy, use or disclose the
contents to anyone. Please also delete it from your system and inform the
sender of the error immediately. Emails sent and received by Richmond and
Wandsworth Councils are monitored and may be subsequently disclosed to
authorised third parties, in accordance with relevant legislation.

Please pass this on to the person who conducts Freedom of Information reviews.

Thank you for your letter dated 8 March 2018 (Your Response), in which you responded to my correspondence dated 9 February 2018 (My Correspondence).

Your Response

I understand that you are refusing to answer the Freedom of Information (FOI) requests within My Correspondence on the grounds that the cost for doing so would exceed the appropriate limit of £450.

In reaching this conclusion, you estimate that you would have to check approximately 5,000 accounts. You estimate that it would take 10 minutes to check each account and that therefore it would take over 800 hours to check each account.

In asserting all this, you rely on section 12 of the Freedom of Information Act 2000 (FOIA) and the ‘appropriate limit’ set out in the Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004.

Internal Review

Please may I request an internal review of this decision?

I believe the decision contained within Your Response is incorrect, and I will outline my reasons for believing this below.

(1) The Cost of Accessing Storage

In your response, you state only that the information requested by my FOI requests is not held in a format in which data can be readily extracted. You do not make clear how your information is stored. For example, you do not specify if it is stored in an off-site or an in-house storage system.

Please confirm how it is stored, and in particular whether it is off-site or in-house.

Please also confirm whether and how the cost of accessing this storage system was included in your calculation of the overall cost of responding to my FOI requests.

(2) Your Failure to Provide Cogent Evidence

I understand you are under a duty to be “reasonable” in your response to FOI requests, and in particular when estimating the time it will take to comply with such requests.

I refer you to the case of Randall v Information Commissioner and Medicines and Healthcare Products Regulatory Agency (EA/2006/0004, 30 October 2007), which defined “reasonable” as meaning “sensible, realistic and supported by cogent evidence”.

I point you to paragraph 37 of the relevant guidance from the Information Commissioner’s Office, available at https://ico.org.uk/media/for-organisatio... (The Guidance), which highlights the following information you might have provided as ‘cogent evidence’:

- whether you have carried out any preliminary searches for the requested information;

- whether you have based your estimate on a random representative sampling exercise;

- which departments or members of staff have been contacted;

- the search terms used when querying electronic records; and:

- why you need to search any accounts to which you refer.

None of this information was provided in Your Response. Because Your Response fails to provide such ‘cogent evidence’, it is not reasonable.

(3) Your Failure to Act Reasonably in light of Other Authorities' Responses to Identical Requests

I refer once more to your duty to be “reasonable” when responding to FOI requests, and in particular to be “sensible and realistic”.

The FOI requests I sent to you have also been sent to other local authorities.

The London Boroughs of Bexley, Kingston-upon-Thames, Lambeth, Sutton and Wandsworth have each responded to my FOI requests with correspondence and excel spreadsheets providing answers to the eight questions I also asked of you.

If the London Boroughs of Bexley, Kingston-upon-Thames, Lambeth, Sutton and Wandsworth are able to provide such responses, it is not reasonable, sensible or realistic to suggest that the London Borough of Richmond-upon-Thames cannot do the same.

(4) Treatment of My Correspondence as One FOI Request

I refer you to the case of Ian Fitzsimmons v ICO & Department for Culture, Media and Sport (EA/2007/0124. 17 June 2008), which established that multiple requests within a single item of correspondence should be treated as separate requests for the purpose of section 12.

Because My Correspondence contained eight separate questions, it should not be treated as one FOI request, but rather as multiple separate FOI requests within one document.

A separate costs estimate should therefore be made for each separate FOI request, rather than one aggregate estimate for the cost of responding to them all.

This could be achieved by calculating an aggregate costs estimate for responding to all eight FOI requests within My Correspondence, and dividing that overall figure by eight.

When costs are calculated in this manner, the cost of responding to each FOI request separately should fall comfortably below the appropriate limit.

(5) Your Failure to Offer Advice and Assistance

I understand that, where a public authority invokes section 12 FOIA in its refusal to disclose answers to an FOI request, that public authority is under a duty to provide advice and assistance to help the requestor refine their request so that it can be dealt with under the appropriate limit.

I further understand that, even where a public authority does not invoke section 12, it remains under a general duty to provide advice and assistance pursuant to section 16 FOIA.

Such advice and assistance may include advice as to what proportion of the requested information could fall within the appropriate limit, and advice as to how an FOI request might be re-formulated so as not to exceed the appropriate limit.

Your Response fails to offer any such advice and assistance.

Concluding Remarks

On the basis of the above, I re-iterate my request for an internal review.

I believe that, following the internal review, you should decide to provide answers to the FOI requests within My Correspondence, on the grounds that:

- you have failed to provide cogent evidence to support your refusal to answer my FOI requests;

- it is neither reasonable, nor sensible, nor realistic that the London Borough of Richmond-upon-Thames should fail to provide responses to my FOI requests where the London Boroughs of Bexley, Kingston-upon-Thames, Lambeth, Sutton and Wandsworth have been able to do so; and:

- you should treat My Correspondence as eight separate requests within one piece of correspondence, which should bring individual costs estimates down to an acceptable level.

Should you disagree with the points raised above, I look forward to receiving your reasons for such disagreement.
If relevant, I also look forward to receiving your advice and assistance regarding what proportion of the FOI requests within My Correspondence you will be able to answer within the appropriate limit, and/or regarding how I might re-formulate my FOI requests so as to stay within the appropriate limit.

We note that you are not satisfied with the response you received from the
Council.

We will therefore, in line with Council procedures, be treating this as a
request for an internal review. The internal review will be conducted by a
senior officer not involved with the original response.